In cases of wrongful termination, reinstatement with continuity of service and back wages is the normal rule. The burden of proof lies on the employer to show that the employee was gainfully employed during the termination period. If the employer fails to provide evidence of gainful employment, the employee is entitled to full back wages.

JYOTI SARAN, J.

1. This intra-court appeal arises from the judgment and order dated 17.11.2014, passed by the learned Single Judge of this Court in CWJC No. 16148 of 2013 whereby even while allowing the writ petition and holding the restoration of the service of the appellant/petitioner by the respondents as a 'reinstatement' and not a case of 're-appointment' and even while allowing him the benefit of past service of 21 years for the purpose of superannuation benefits, the learned Single Judge has denied the benefit of back wages to the appellant/petitioner and the reasons are missing therefor. This denial of back wages to the appellant/petitioner for the period he was kept out of service i.e. from 28.02.2003 until his reinstatement on 04.05.2012 by the learned Single Judge, which has aggrieved the appellant/ petitioner to move this Court through this present intra-court appeal which is limited to the issue of back wages.

2. We have heard Mr. Bindhayachal Singh, learned counsel appearing for the appellant/petitioner and Mr. Ranjan Kumar Singh, learned AC to PAAG-2 on behalf of the State and we have perused the record.

3. Before we would proceed to record our opinion on the rival contentions advanced on the issue, we deem it proper to record the bare essential facts which would be necessary for disposal of this appeal.

4. The appellant/petitioner was appointed as a Male Welfare Worker under the Civil Surgeon cum Chief Medical Officer, Singhbhum (now in the State of Jharkhand) vide Memo No. 125 dated 03.02.1982 after going through a selection process initiated following an advertisement published bearing No. 18/1980. Vide Memo No. 968 dated 04.04.1984 the appellant/petitioner was transferred to the Primary Health Center, Chenari in the district of Rohtas where he joined on 14.06.1984. The appellant/petitioner was again transferred from Primary Health Center, Chenari, Rohtas to Primary Health Center, Barh in the district of Patna vide Memo No. 486 dated 02.05.1986 where he joined on 14.06.1986. Vide Memo No. 1431 dated 27.12.1986 appellant/petitioner was transferred from Primary Health Center, Barh to the Referral Government Hospital, Rajgir in the district of Nalanda where he joined on 26.02.1987. Vide Memo No. 2089 dated 23.10.1997 of the Civil Surgeon cum Chief Medical Officer, Nalanda, the appellant/petitioner was posted in Asthawan Block where he joined as Incharge Medical Officer, Asthawan. During his service career the appellant/petitioner has earned time bound promotion as well as pay revision took place from time to time.

5. It is while the appellant/petitioner was posted in the district of Nalanda that he was directed to produce relevant documents in respect of his appointment and suddenly with effect from August 2002, the payment of salary to the appellant/petitioner was stopped. The appellant/petitioner was put to show cause vide Memo No. 331 dated 07.02.2003 in support of his appointment. The appellant/petitioner filed his show cause reply but not being satisfied, that vide Memo No. 691 dated 28.02.2003 of the Civil Surgeon cum Chief Medical Officer, Nalanda, the appellant/petitioner was terminated from service.

6. Feeling aggrieved, the appellant/petitioner moved this Court in CWJC No. 3247 of 2003, which was heard and allowed vide judgment and order dated 08.09.2003. Feeling aggrieved, the State moved in appeal giving rise to LPA No. 1005 of 2003, which was heard analogous with other cases and disposed of with direction to the authorities in the State Government in its Health Department, to reconsider the case of the appellant/petitioner and Others. It is following the order passed in LPA by the Division Bench that a Committee was constituted headed by the Director-in-Chief, who found that the appointments were forged.

7. The appellant/petitioner again approached this Court in CWJC No. 12431 of 2008, which was allowed on 06.10.2009. Feeling aggrieved, the State again moved in appeal giving rise to LPA No. 196 o